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Going, Going, Gone?

From Washington Lawyer, January 2011

By Kathryn Alfisi

For years world leaders have sounded the alarm bells on the chilling reality that Earth’s diverse species are rapidly vanishing, and time may be running out to save them. In October 2010, representatives from 193 nations met in Nagoya, Japan, for the United Nations Convention on Biological Diversity to make new commitments to slow the rate of global species loss in the next decade.

According to a study published by the journal Science at the time of the summit, an average of 50 species worldwide move closer to extinction every year, a number that would have been at least 20 percent higher were it not for biodiversity efforts.

Whether the new global goals that came out of the two-week summit would come to fruition remains to be seen, especially since ambitious targets set at the 2002 convention were not met. However, the Nagoya summit illustrates how important the issue of biodiversity has become for countries all over the world.

Representatives from the United States were in attendance only as observers at the summit because Congress has never ratified the original biodiversity treaty, an issue that continues to draw harsh rebukes from environmentalists here and abroad.

Expanding Reach
Attempts by the United States to address the loss of biodiversity closer to home also have met their fair share of criticism, including what may be this country’s most controversial environmental statute—the Endangered Species Act (ESA).

Since it was signed into law in 1973, the ESA often has tested the tenuous balance between protecting economic interests and saving imperiled species and their habitats. And while the ESA has always had the potential to bring about change, in recent years environmentalists have used it more as a tool to affect legislation and policy on issues such as agriculture, climate change, energy, and forestry.

“It used to be that the ESA was being used just to stop federal projects from being built in the desert someplace … but now many environmental groups look at it as a tool for shaping climate change, for getting rid of pesticides or reducing pesticide use, and now, perhaps, also for limiting drilling,” says Eric Andreas, a partner at Wiley Rein LLP’s environment and safety litigation practice.

Jeff Holmstead, head of the environmental strategies group at Bracewell & Guiliani LLP, voices similar sentiments, although he says this type of expansion is not unique to the ESA.

“As the environmental community gets more sophisticated, and especially as its funding has increased, it has found newer, more innovative ways of using these existing laws and that’s certainly true with ESA. From my vantage point, I have seen it expand into a number of areas that I think go beyond what was originally intended. I think in particular we’re seeing that in greenhouse gases,” says Holmstead, who formerly led the Office of Air and Radiation at the U.S. Environmental Protection Agency (EPA).

An example of this can be seen in a recent attempt to elevate the listing of the polar bear, whose habitat is being threatened by shrinking ice caused by greenhouse gas emissions, from “threatened” to “endangered.”

But while the environmental community may be applying the ESA in newer ways, advocates say their end goal is the same—to protect species and their habitats, which is what the ESA was designed to do.

“We’ve certainly taken the lead in applying the ESA in areas where it perhaps hadn’t been applied before. For example, we sought a listing of species that are threatened by climate change. But the tools that we use to do this aren’t fundamentally different from what we used 10 years ago,” says John Buse, legal director of the Center for Biological Diversity (CBD).

“With the ESA, we’re concerned with species protection first and foremost, and if we see an emerging threat like global climate change, which I think is the most significant threat to global biodiversity right now, we feel that it should be recognized. Is that going to shape policy? We hope so. But it’s not a tool in isolation, although it’s certainly an effective one,” Buse adds.

According to a source at the U.S. Department of the Interior, who asked not to be identified because of ongoing litigation, what makes the ESA stand out is that groups such as CBD can, thanks to citizen suit provisions, have such an impact. “There is the ability for individuals and outside organizations to really apply pressure and basically have us be accountable for statutory deadlines. There are many laws on the books that have the potential for the same amount of controversy, but the litigation that is driving this is really unique when you look at federal environmental law,” he says.

Species in Listing Limbo
In 1973 the ESA joined a flurry of environmental statutes that made it through Congress around that time, including the National Environmental Policy Act of 1969, the Clean Air Act of 1970, and the Clean Water Act of 1972.

“There are four primary environmental statutes, and in my opinion the ESA is the most comprehensive as far as the protections it provides and the remedies it gives to us as citizens to go and protect species. When it was passed, it was at a high tide for environmental statutes in general… . Since that time, it’s been very difficult to get anything passed because there’s so much controversy over the environmental impact of different activities,” says Bill Eubanks, an associate with the public interest firm Meyer Glitzenstein & Crystal.

The ESA was crafted to protect and recover imperiled species and the habitats on which they depend for survival. Depending on the species in question, the ESA is administered by the U.S. Fish and Wildlife Service (FWS) of the U.S. Department of the Interior, or the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration, under the U.S. Department of Commerce.

Among other things, the FWS and NMFS are responsible for listing endangered and threatened species based upon information presented before the two agencies through a public petition process, or on their own accord; handling consultations under section 7 of the ESA with federal agencies that have ordered, authorized, or funded an “action” that may affect a listed species or its habitat, and, in some cases, subsequently issuing a resulting biological opinion; and enforcing a prohibition on “take,” which includes the killing, harassing, or wounding of a listed species.

Currently there are 1,371 species of plants and animals listed as threatened or endangered in the United States. The ESA defines “threatened” as a species likely to become endangered in the foreseeable future, and “endangered” as a species in danger of extinction throughout all or a significant portion of its range.

During the listing process the FWS and NMFS make their determination based on a species’ biological status and the threats to its existence. They also maintain a “candidate species” list for species whose listing may be warranted, but the agencies are precluded from doing so because of higher listing priorities.

This “warranted but precluded” list has been a focus of groups such as CBD, which worries that many species have been left to languish as candidates for years while a backlog keeps growing.

“We believe that with the considerable effort and expense [spent on studying these species, the FWS and NMFS] could have arrived at a decision to actually protect the species instead of just putting it in listing limbo,” Buse says.

Plight of the Polar Bear
Andreas credits the CBD, along with the Sierra Club, for broadening the ESA through their ongoing effort to get more species listed as either threatened or endangered. Through its Endangered Species Program, CBD has used petitions and litigation to get more than 360 species listed.

More recently, there have been a number of attempts to get listings for Arctic species so that, according to Andreas, “You can then move to restrict any issuance of permits or any other activities by the federal government that contribute to climate change and the continuing melting of the ice that makes it more difficult for these species to survive.”

One such species is the polar bear, which, after a petition and two lawsuits filed by CBD and other organizations, was listed as threatened under the ESA in 2008.

“The polar bear listing was something that was impossible to ignore. Without the sea ice the species is lost, and I think that hit home to a lot of people and I think that was a pretty striking result. This is where the ESA meets policy considerations. If we want to see polar bears in the future, then we need to deal directly with this problem,” says Buse.

However, the battle over the listing of the polar bear is still being fought. In its decision to list the polar bear as threatened, the FWS linked the bears’ survival to retreating sea ice in the Arctic, which the agency acknowledged was due in part to greenhouse gas emissions. That triggered concerns that the listing would be used to force consultations under section 7 of the ESA for federal actions involving greenhouse gases.

To assuage fears that the listing would affect global warming policy, former U.S. Department of the Interior Secretary Dirk Kempthorne had the FWS issue a “special rule” that exempted from ESA consultation requirements federal actions involving greenhouse gas emissions and activities occurring outside of Alaska.

“We have sought the Solicitor’s opinion, and that still stands. It basically says that we don’t have the ability to make a direct causal connection between an individual project and harm to a particular species,” says the Interior Department source. “The information that we have doesn’t allow us to draw a direct linkage between say the approval of a utility permit in Ohio and the impact of a particular population of polar bears.That’s kind of where we are right now, and it’s the position of the agency that the ESA isn’t the appropriate vehicle to regulate greenhouse gas emissions… What the act is designed to do is address proximate impacts that can be directly linked to impacts to a species or a population,” he says.

The CBD, joined by Greenpeace International and the Natural Resources Defense Council, filed a lawsuit against the Interior Department seeking more protections for the polar bear. In November, U.S. District Judge Emmet Sullivan ordered the agency to reconsider the bear’s listing, rejecting the department’s position that the polar bear need not be listed as endangered because its extinction is not imminent. A hearing date was set for February to consider the department’s response.

Although they have become something of a poster child for global warming, polar bears were not the first species to be listed under the ESA due to threats posed by climate change. That distinction belongs to the staghorn and elkhorn corals, which are found in the warm waters of the Caribbean and along the coast of Florida. Threatened by increasing ocean acidification caused by rising levels of carbon dioxide, the corals gained federal protection in 2006.

“It was something of a precedent set that we had federal agencies recognizing that climate change was posing a threat to these species. In terms of policy that directly and indirectly affects the species, that’s something we have yet to see, but it’s the next step,” Buse says.

Damper on Business
There is concern among some, as seen in the “special rule” decision, that the listing of species apparently threatened by the effects of greenhouse gas emissions will result in requests for section 7 consultations before power plants or any other major producer of carbon dioxide are permitted to operate.

In 2009, it was not the polar bear or the staghorn coral but the razorback sucker and the Colorado pikeminnow fish that played a role in the EPA pulling the plug on a coal-fired power plant. The $3 billion Desert Rock Energy Project was slated to be built on the Navajo Nation in the Four Corners region of New Mexico.

Completion of the plant was halted in the beginning of 2009 when, in a dramatic move, the EPA withdrew a key air quality permit it granted about a year earlier. The EPA cited in part that the permit had been issued before a complete analysis could be conducted on the impact of hazardous air emissions like mercury on soil, vegetation, air visibility, and endangered species.

The Bureau of Indian Affairs subsequently withdrew its biological opinion in support of the plant, citing concerns over the two endangered fish found in the San Juan River, leaving the project essentially dead in the water.

The decision drew praise from New Mexico and several environmental groups that had appealed the EPA’s original decision, but it drew criticism from the plant’s supporters, including many members of the Navajo Nation who viewed the plant as a much-needed economic opportunity.

Holmstead, whose firm represented the project developer, says he has never heard of the EPA changing a decision like it did in Desert Rock, but that it has happened several times under the Obama administration. As a result, projects are either stopped or delayed, especially fossil fuel plants.

“Before this administration, all of the permitting programs kind of went along mostly being implemented by … the regional offices, but there’s never been a wholesale change to all of these pending permit applications. This really is a sea change and a fundamental difference in the way permits are handled, and Desert Rock is one very big example. But there are many others out there, projects that were well into the approval process and were nearing final approval, and then EPA came in and said, ‘No, you’ve got to go back and reevaluate those even though the permit applications may have been filed years ago,’” Holmstead says.

When President Obama took office in 2009, Holmstead says there was speculation that the new administration would attempt to use the ESA as a means to develop a national greenhouse gas policy to reduce emissions.

“They haven’t tried to do that, I don’t think they really can, but what they have done is … use the ESA, along with some other statutes, to stop construction on any projects that are deemed unacceptable, and they’ve done that without any regulations or official prohibitions, but by simply saying, ‘You’ve got to do more analysis, you’ve got to do this analysis.’ And so, at this point, it’s not an official moratorium. … As a result, a lot of the people who were looking to fund these projects are now looking elsewhere,” Holmstead adds.

A Frustrating Process
Attorneys Andreas and David Weinberg, chair of Wiley Rein’s environment and safety practice, have also been frustrated by EPA decisions prompted by the ESA, specifically in the area of pesticide registration.

Several lawsuits have been filed against the EPA in recent years in an attempt to integrate ESA consultations into the pesticide registration process. One of EPA’s challenges has been in implementing the ESA requirements alongside those of the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA), under which pesticide ingredients undergo review and supervision.

According to Weinberg, the EPA, through FIFRA, already has a very comprehensive program to evaluate environmental concerns, and that the introduction of the ESA requirements would lead to a complicated set of questions.

Weinberg says bringing the ESA requirements into the process opens the door for many questions: Does the EPA have a continuing obligation to monitor pesticide products and adjust their registration if new science emerges showing concerns? Should there be a continuing federal action that requires constant consultations with the FWS and NMFS?

“There are very few pesticides that are designed to deal with one pest in a defined region. Most are designed to deal with a certain type of pest that may be all over the place. Well, if you have a chemical you could use all over the United States, you have potentially 1,000 endangered species evaluations to do,” he says.

Weinberg notes that that there have been half a dozen lawsuits filed against the EPA challenging a variety of combinations of species and products, the first of which involved salmon and more than 50 agricultural chemicals. Out of that suit, the EPA consulted with the NMFS, which took so long to act that environmentalists sued the agency for not responding. The NMFS is now under a settlement to evaluate EPA decisions on a schedule that runs until 2012.

“[The process is difficult because] the [FWS and NMFS] are very understaffed, and if you start to take the broadest possible assertion of authority on thousands of actions by federal agencies involving thousands of species and their habitat, each one of those combinations of actions and species have to be evaluated. The most recent evaluation the [FWS and NMFS] did for the EPA involved a group of pesticides and is 900 pages long,” Weinberg says.

“So there’s a huge backlog and there’s not enough staff to deal with it. Putting aside the question of whether the staff is open-minded or not, it’s just an impossible task. And if your view is that nothing can happen until this task is completed, then you get the type of frustration that our clients feel.”

Balancing Environment and Development
However, the section 7 consultation process is not necessarily always so contentious.

“Obviously, what you read about in the headlines are conflicts, but there are thousands of consultations going on every year that are being worked out without any significant controversy, and that’s because, one, people who run the companies care about wildlife, and two, they want to find a solution that actually makes business sense and to work things out quietly rather than through litigation,” says John Kostyack, executive director of Wildlife Conservation and Global Warming at the National Wildlife Federation.

Eubanks, the Meyer Glitzenstein & Crystal associate, and his firm had experienced this level of cooperation after working on what would become the first court challenge to the wind power industry under the ESA. Through to the efforts of Meyer, Glitzenstein & Crystal, a judge halted the expansion of the Beech Ridge Project in 2009 in West Virginia because it had the potential to kill or wound endangered Indiana bats.

“Now we actually have wind companies calling us and our clients up and asking, ‘What can we do? We know the ESA is out there, but we have no expertise in what the ESA is; we’ve always considered ourselves green, but we’re now realizing there’s more to being green than not putting out carbon emissions, so help us on the wildlife front,’” Eubanks says.

“We and our clients are cooperating with wind companies and other renewable energy companies. So there’s an example of where five years ago industry would thumb there noses at the ESA, but they now realize that they do have these obligations,” he adds.

Eubanks says it is safe to say that the ESA is probably deemed the most controversial among the country’s environmental statutes. While the community sees it as a tool to increase sustainability and curb the rate of biodiversity loss, “the other side, whether legitimate or not, tends to see it as a hindrance,” when securing a permit might mean more financial input or an extra year or two tacked onto the project timeline.

Despite controversy and conflict surrounding the ESA, Eubanks says more people on the industry side are starting to recognize the benefits of the statute. “We’ve seen certain industries sort of wake up to it and realize that the ESA is a great tool, and want to find a way to find a happy medium or balance [between development and conservation],” he says.

Disaster in the Gulf
Eubanks and his firm, along with CBD, the Animal Legal Defense Fund, Animal Welfare Institute, and the Turtle Island Restoration Network, also were involved in one of numerous lawsuits filed under the ESA following the Gulf of Mexico oil spill last spring.

Their case dealt with the unlawful “take” of endangered turtles during “controlled burns” carried out to contain the oil. The process involves dragging together fire-resistant floating booms to create a corral of oil, and then setting the enclosed oil on fire. There are five species of sea turtles, including the most endangered—Kemp’s ridley turtle, that are known to be in the areas affected by the oil spill at some point in the year.

The plaintiff groups sought a temporary restraining order against British Petroleum (BP) and the U.S. Coast Guard for an immediate halt to the burns. In July, the parties negotiated an interim agreement, which stipulates that the plaintiffs will be notified if a qualified biologist is present for the purpose of locating and removing any turtles when the burns resume.

BP and the Coast Guard also agreed to “establish a standard operating protocol for the burns, and to convene a group of scientists to determine the necessary elements of the protocol to ensure the safety of the turtles,” the Animal Welfare Institute reported on its Web site.

But while this particular case moved to a fairly speedy resolution, many of the other lawsuits surrounding the oil spill are more complicated and have greater implications.

CBD has filed numerous lawsuits and notices of intent to sue in relation to the oil spill, including several against Interior Secretary Ken Salazar.

One lawsuit claims that Salazar disregarded marine mammal protection laws in the Gulf of Mexico by approving seismic surveys, lease sales, and drilling operations without permits required by the Marine Mammals Protection Act and the ESA. Another claims that Salazar failed to assess the possible impacts of a potential oil spill on the gulf’s endangered whales and sea turtles, and it seeks new analysis of the impact of offshore oil drilling.

Andreas sees these cases as an attempt to get the Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the Minerals Management Service, to consult with the NMFS before offshore drilling permits are granted. The consultations would result in the issuance of a biological opinion on whether or not there is jeopardy to a particular endangered species. It is also through the consultation process that the design or construction of the rig—and even whether the rig is permitted—can be decided.

According to Buse, the significance of CBD’s involvement with the spill is that the organization “highlighted not just the errors or malfeasance of the private parties involved, but sort of a systematic regulatory failure by the federal government. This problem isn’t just the result of BP or the other operators.”

Although the case does not involve drilling, a lawsuit was filed this summer by the National Wildlife Federation and the Florida Wildlife Federation against the Federal Emergency Management Agency (FEMA) seeking protections to the same sea turtles under threat from the oil spill. In this case, however, the plaintiffs argue that development pressures on the turtles’ nesting habitat pose harm to the species.

“The case was already in development at the time of the oil spill, but the spill added to the list of reasons why it was important. Like most endangered species, there’s not just one stressor but a combination of stressors that’s pushing the sea turtles to extinction,” Kostyack says.

The National Wildlife Federation and Florida Wildlife Federation contested that FEMA should not be able to issue a National Flood Insurance Program—and thereby encourage development—in coastal areas of Florida where the turtles nest without first consulting with the FWS.

“Right now, despite all the science telling us that we need development to retreat from the beaches, we continue to have more and more development pressures, not just with houses but also with sea walls to protect structures,” Kostyack adds.

He rejects the argument that applying the ESA in such cases can be detrimental to industry and the economy.

“It’s very much in our economic interest to protect species. I think we are sabotaging our economy by not protecting wildlife and wildlife habitat…. In this country and around the world, we oftentimes have a sort of false dichotomy going on that it’s either protect the environment or help the economy, and we’re gradually chipping away at that myth…. You can go through every single source of our economic livelihood and show how intertwined they are with protecting nature,” Kostyack says.